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Gilbertson v. Jones

United States District Court, E.D. Virginia, Richmond Division

August 17, 2016




         This matter is before the Court on Defendants' MOTION TO DISMISS (Docket No. 4). For the reasons stated below, Defendants' MOTION TO DISMISS (Docket No. 4) will be granted in part and denied in part. The motion will be granted as it pertains to Count One, and denied as it pertains to Count Three.


         Plaintiff Suzanne Gilbertson ("Gilbertson") was employed as the Food Services Coordinator for King & Queen County Public Schools ("the School System"). (Compl., Docket No. 1, ¶ 1) . In January 2015, Gilbertson learned that she had cancer and took time off for surgery. (Compl. ¶¶ 7-17). The School System denied Gilbertson's request for an extension of leave under the Family & Medical Leave Act ("FMLA"), allegedly over failure to return certain forms. (Compl. ¶¶ 12-16). On March 23, 2015, Gilbertson filed a grievance against her supervisor, superintendent Stanley B. Jones ("Jones'7), over the denial of FMLA leave and over the reorganization of her department which occurred in her absence. (Compl. ¶¶ 3, 16-17).

         On April 15, 2015, Jones and the School System decided to eliminate Gilbertson's position. (Compl. ¶ 18). According to Gilbertson, "[t]he alleged basis for the decision was budgetary concerns, but the truth is that Dr. Jones and the School System were intentionally retaliating against Gilbertson for her FMLA- related grievance." (Compl. ¶ 18). Gilbertson further alleges that "on May 1, 2015, Dr. Jones and the School System suspended Gilbertson with pay . . . The stated reason for the 'suspension' was performance, but this reason was false .... In truth, the suspension was in retaliation for Gilbertson's FMLA-related grievance." (Compl. ¶ 19). The Complaint states that

[s]oon after that, Jones defamed Gilbertson, both in TV and in print. First, on May 7, 2015, as part of a news story on WTVR titled "Would you eat this? Charred food served at area high school" which discussed food quality problems at the School System, Dr. Jones told the TV station that Gilbertson had been placed on suspension and then stated, although he could not go into details, "if an employee is suspended, generally, it's going to be related to performance." In other words, he told the TV station that Gilbertson had performance problems and that her performance problems were the reason for the food service problems that the station was reporting on.

(Compl. ¶ 20) (emphasis added). Jones is alleged to have repeated similar statements to a local newspaper. (Compl. ¶ 21).

         Gilbertson's employment with the School System ended on June 30, 2015. (Compl. ¶ 23). Gilbertson filed this Complaint on April 29, 2016. The Complaint alleges three counts. Count One (against Jones and the School System) alleges "Due Process Violation: Liberty Interest" on the basis of Jones's press statements. (Compl. ¶ 25-31). Count Two (against the School System) alleges "Wrongful Termination and Interference Claims under the Family & Medical Leave Act." (Compl. ¶ 32-39). Count Three (against Jones) alleges "Defamation" on the basis of Jones's statements in the press. (Compl. ¶ 40-45).

         On June 23, 2016, Jones and the School System (collectively "Defendants") filed a Motion to Dismiss Counts One and Three. (Docket No. 4).


         A motion to dismiss under Fed.R.Civ.P. 12(b)(6) challenges the legal sufficiency of a complaint. Jordan v. Alternative Resources Corp., 458 F.3d 332, 338 (4th Cir.2006). Fed.R.Civ.P. 8(a)(2) "requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the ... claim is and the grounds upon which it rests." McCleary-Evans v. Maryland Dep't of Transp., State Highway Admin., 780 F.3d 582, 585 (4th Cir.2015) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

         When deciding a motion to dismiss under Rule 12(b)(6), a court "draw[s] all reasonable inferences in favor of the plaintiff." Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 253 (4th Cir. 2009). However, while the court must "will accept the pleader's description of what happened" and "any conclusions that can be reasonably drawn therefrom, " the court "need not accept conclusory allegations encompassing the legal effects of the pleaded facts, " Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed.1998); Chamblee v. Old Dominion Sec. Co., L.L.C., No. 3:13CV820, 2014 WL 1415095, *4 (E.D. Va. 2014). Nor is the court required to accept as true a legal conclusion unsupported by factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). "Twombly and Iqbal also made clear that the analytical approach for evaluating Rule 12(b)(6) motions to dismiss requires courts to reject conclusory allegations that amount to mere formulaic recitation of the elements of a claim and to conduct a context-specific analysis to determine whether the well-pleaded factual allegations plausibly suggest an entitlement to relief." Wright & Miller, supra; Chamblee, supra.


         A. Plaintiff Fails to State the Allegations of Serious Character Defect as Required to Sustain the Due Process Claim Alleged in Count One

         The liberty interests protected by the Due Process Clause go beyond physical security: these liberty interests are also implicated "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him." Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971); Doe v. Rector & Visitors of George Mason Univ., 132 F.Supp.3d 712, 722 (E.D. Va. 2015). Accordingly, federal law recognizes a cause of action where: (1) a state actor's statements stigmatize a plaintiff by alleging that plaintiff suffers from a serious character defect; (2) such statements are accompanied a negative change in plaintiff's employment status; (3) the statements were published; and (4) the statements were false. Greene v. Scott, 637 F.App'x 749, 751 (4th Cir. 2016) (unpublished) (relying on Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 308 (4th Cir. 2006)).

         At this stage, Defendants do not contest that Jones's statements accompanied Gilbertson's firing, that the statements were public, or that the statements were false. Therefore, the sufficiency of Count One turns on the first requirement: whether Jones's statements alleged a serious character defect.

         The line of cases recognizing a Due Process stigma claim arise out of Constantineau, 400 U.S. at 433, and Paul v. Davis, 424 U.S. 693 (1976). In Constantineau, the Supreme Court held that a Due Process liberty interest was implicated where a police chief posted a notice in liquor stores that sales of liquor were forbidden to plaintiff, pursuant to a statute permitting posting of such notices when excessive drinkers exhibited certain traits. Constantineau, 400 U.S. at 434-439. In Paul, the Supreme Court held that no liberty interest was implicated where police chiefs included a photograph of plaintiff identifying him as an active shoplifter, noting that "reputation alone, " without harm to a tangible interest such as employment, was insufficient to implicate a Due Process liberty interest. Paul, 424 U.S. at 701. The origins of the Due Process stigma claim inform the level of seriousness required for allegedly defamatory statements by state actors to be actionable under the Due Process Clause of the Fifth and Fourteenth Amendments. Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982) (stating, in employment Due Process stigma case, that “[i]t is noteworthy that the Court's dictum in Paul v. Davis ... was made in the context of allegations of criminality.").

         Recognizing that not all disparagement by a state actor is constitutionally actionable, courts employ the "serious character defect" threshold. To be actionable, a state actor's allegations must "imply the existence of serious character defects such as dishonesty or immorality" so that the statements "might seriously damage [plaintiff's] standing and associations in his community" or foreclose "his freedom to take advantage of other employment opportunities." Zepp v. Rehrmann, 70 F.3d 381, 387-88 (4th Cir. 1996) (relying on Board of Regents v. Roth, 408 U.S. 564, 573 (1972)); see also Sciolino v. City of Newport News, Va., 480 F.3d 642, 647 (4th Cir. 2007) (quoting Robertson, 679 F.2d at 1092). Allegations of fraud or dishonesty rise to the level of qualifying "serious character defects." E.g., Sciolino, 480 F.3d at 647; Boston v. Webb, 783 F.2d 1163, 1165-66 (4th Cir. 1986) (allegation that employee received bribe sufficient to state liberty claim); McNeill v. Butz, 480 F.2d 314, 319-320 (4th Cir. 1973) (allegation connecting employee with financial irregularities sufficient to state liberty claim) .[1]

         Yet allegations of incompetence, standing alone, do not imply serious character defects, and are not actionable under the Due Process Clause. Sciolino, 480 F.3d at 647 (relying on Ridpath, 447 F.3d at 308-09); see also Greene, 637 F.App'x at 751 (statements regarding inadequate work product did not support claim); Zepp, 79 F.3d at 388 (statements regarding "management problems" did not support claim); Robertson, 67 9 F.2d at 1092 (statements regarding incompetence did not support claim); Merritt v. Mullen, 49 F.Supp.2d 846, 848-49 (E.D. Va. 1999) (statements regarding "mismanagement" did not support claim); Zarrelli v. City of Norfolk, No. 2:13CV447, 2014 WL 2860295, at *6 (E.D. Va. Jun. 23, 2014) (statements regarding violations of office policy did not support claim).[2] The rule that incompetence alone does not ...

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